This article is a summarised version of a much longer commentary which shall be published subsequently.
The views expressed below are exclusively those of the author and not of the African Court.

THE IMPERATIVE OF SYSTEM-BASED LAW MAKING

When the African Court became operational in 2006, the expectation was that it will affirm the then widely criticised African Commission on Human and Peoples’ Rights rather than merely “judicialise” the system. The Court therefore bears the historical duty to adopt a system strengthening approach to judicial law-making. As it makes law over the years, it becomes paramount to vet the Court’s pronouncements against that raison d’être. I attempt to do so with respect to its recent decisions.

ADVISORY MATTERS

Substantively, the requests related to a varied range of matters that are both current and novel, ranging from the meaning and scope of the role of the African Union policy organs to ‘consider’ the Activity Report of the African Human Rights Commission to the modalities of litigating the crime of unconstitutional change of government. Unfortunately, the Court did not assert jurisdiction to pronounce itself on the merit of those issues.

Lack of Standing (or Jurisdiction): Inoperative Advisory Mandate?

Article 4(1) of the Court Protocol provides that “… the Court may provide an opinion …at the request of a Member State of the OAU, the OAU, any of its organs, or any African organisation recognised by the OAU …”.

Relying on its precedent in SERAP,[1] the Court restated that NGO-authors are not “recognised by the African Union”. In response to the authors’ argument that their recognition by the African Commission clothed them with an umbilical cordon with the African Union, the Court posited that the two statuses are granted through two separate processes and by two legally separate entities. Interestingly, however, the Court began to build a body of AU recognition formulas by stating that such can be obtained through an Observer Status or a Memorandum of Understanding.

In light mainly of the purposive interpretation and application of international human rights law, the findings of the Court left the following questions meaningless and fully unanswered:

What is the purpose of clothing the African Commission with mandate to grant Observer Status to NGOs against the backdrop of AU’s recognition of the Commission as a treaty body with specific mandate for the protection and promotion of human rights in Africa as spelt out in Article 45 of the African Charter?

Under the postulate that the purpose of the advisory opinion mechanism before the Court is, with specific reference to NGOs, to shed light on AU human rights law in order to enhance civil society intervention, which AU body better than the African Commission should hold legitimacy to ascertain NGOs recognition … (Article 4, Court Protocol)? (see full commentary).

In the light of the foregoing, against the backdrop of the traditional poverty of state engagement with the advisory opinion procedure in international arenas and, specifically the absence of such engagement in the first ten years of operation of the Court, how operative would a stricto sensu construction of the law render the advisory mandate of a Court whose contentious activity so far has in more than 90 per cent of the cases been support by of NGO-led applications?

In connexion with the just preceding point, how does one comprehend the level of state observations in the procedure that led to these Opinions? States filed observations only in two of the four requests, and only three states did in all. In the Request concerning the consideration of the African Commission’s Activity Report by the AU policy organs, the two states that filed observations were of the view that NGOs do not qualify as “recognised by the AU”. The same position was taken by another state in the Request by RADDHO.

The letter of Article 4 does not resemble the close list of Article 5, which fully justified the ‘agent to principal’ theory[2] observed by the Court in the Committee’s Direct Access Opinion. There was therefore ample judicial latitude to investigate the questions above fully, to make an unquestionable finding on the matter.

CONTENTIOUS MATTERS

JUDGMENTS ON INTERPRETATION

Remedial powers of the Court under Article 27: What are “appropriate measures”

After declining to offer the specific remedy of release from prison requested by the Applicants in the main cases, the Court extended its order to that remedy in the interpretation judgment. The Court reiterated that it could not grant the order because there were no special and compelling circumstances in the instant case warranting it.

The main implication relates to the scope of the Court’s power to grant remedies. In light of its precedents in Alex Thomas v Tanzania and the Abubakari merit and interpretation judgments, the jurisprudence does not seem to have been clearly affirmed. This is because the Court recognises a release order as falling within its remedial powers but declines to offer the same for want of circumstances, which it leaves undefined. While it could be understood that the Court is trying to navigate in the murky waters of state margin of appreciation, its reinforcing role in the complementarity era may demand more authoritative use of Article 27. Here, one cannot but mention the shortcomings in the experiences of the African Commission (Pagnoule v Cameroon, Avocats Sans Frontières v Burundi, Abubakar v Ghana) and the ECOWAS Court (Ameganvi v Togo). Unclear remedies leading to disputes between parties hold the potential of diminishing the authority of international courts.

In the main judgment, the Court found that the Electoral Commission is not independent due to unbalanced representation in favour the executive and ruling coalition. The Respondent requested the Court to, among others, “provide more specific indication on the nomenclature of the new Independent Electoral Commission especially with regard to its organisation, background, mode of appointment of its members and distribution of the seats”. It is not clear why the Court rejected this request while it explicitly advised the Respondent, in Abubakari, on “how” to implement “appropriate measures”. It is not contested that the latter failed to quote the operative part but Court Rules require only to “state clearly” the part of the judgment it seeks clarification on rather than quote the judgement verbatim.

Noting that the Appeal Court of the respondent is the highest judicial body, the Court took the view that the review and constitutional petition are extraordinary remedies that the Applicant is not obliged to exhaust.

The Court must be praised for jurisprudential consistency as it grounded the Owino determination on the Jonas precedent, which itself was based on Abubakari. While it may be true that the consideration of basic rights violations in proceedings before ordinary courts could render the Applicant’s claim moot, it remains unanswered whether the “bundle of rights and guarantees” theory[7] applied by the Court in Abubakari and Thomas becomes a “one size fits all” solution. For instance, what of applicability in cases with no bundle of rights? When adjudication is being made on such a critical issue that will govern jurisprudential posterity, perhaps a more purposive approach is needed to allow adjustment over time. Such proposition becomes even more important when in the same system, the African Commission has developed a purposive recognition of non-judicial measures, including administrative ones, as acceptable under Article 56(5) where they are legally established in the Respondent’s laws (Kammoun v Tunisia, Mbiankeu v Cameroon).

Furthermore, it appears that clarity is lacking as to what is understood as an extraordinary remedy and the difference between extraordinary and discretionary remedy (see full commentary).

AFFIRMATION IS GOOD, SYSTEMIC AFFIRMATION IS BETTER

One must praise the Court for ‘introspective’ jurisprudence, which is a well-established sign of affirmation and catalyst for legitimacy. First, the increasing trend to self-centred judicial law-making is sustained. Immediately after Zongo and Konaté, the Court began to rely less on other international courts and more on its own precedents. Second, it has seized the opportunity of subsequent decisions to adjust and affirm previous ones. Especially regarding advisory opinions, it has taken a rather reluctant and cautious approach to avoid rewriting the law. However, from a system perspective, adjustments are arguably needed. Doing so is urgent before jurisprudence consolidates irremediably and the Court is pushed to the wall by parties who may build subsequent cases on affirmed precedent to test the entire system.

[2] In the law of international organisations, especially within the framework of regional communities, an organ that is created under an intergovernmental organisation acts by attribution, thus as an agent, on behalf of the umbrella institution, which is the principal. While the agent may discharge its duties in full independence, and without interference from the principal, it is generally understood that it cannot assdv more power than granted by the former. That is mostly the case when a judicial organ of an IGO declines to extend a closed list of items expressly provided in a statute adopted by the principal in its capacity as the legislator.

[7] The theory simply suggests that when violations of procedural rights had already been examined together with substantive rights, a subsequent adjudicator will consider that there is no more need for the Applicant to show that he or she has exhausted remedies with respect to the procedural rights. In its practice, the African Court has dismissed Respondent’s objections that the Applicant should have filed a constitutional petition to challenge the violations of his procedural rights that occurred during trial before domestic courts. In the African Court’s view, these violations had already been considered by the municipal judge together with the substantive claims.

About the Author:
Sègnonna Horace Adjolohoun is a human rights lawyer and constitutional law expert from Benin. He currently works as Principal Legal Officer at the African Court on Human and Peoples’ Rights. Prior to joining the Court, he was Senior Legal Expert and Team Leader on a project aiming a clearing the backlog of the African Commission on Human and Peoples’ Rights and boosting referral of cases from the Commission to the Court (2013-2015).